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The War Against Airtell By NATCOM: Legal, Social and Economic Implications

By Philip Neville

The greatest benefit for the greatest majority of Mobile Phone subscribers is the focus of the National Telecommunications Commission (NATCOM) as the basic and principal reason for waging a war against the Country’s biggest Mobile Phone Company. Although perception of the decision may vary from one subscriber to another or from a member of staff to the other of the affected Company, however; the fundamental fact reminds undisputed and NATCOM like many other state institutions is proving tough and sending its unwavering message to other providers of the services that it can fall heavily on anyone that fails to provide the greatest benefit for the greatest number of subscribers.

In resorting to this action, it is evidently clear that NATCOM has evaluated the repercussion of its intended action in the event that Airtell fails to comply with the dictates of the 21-day notice already issued out to the Company. It is against this background that the services of two legal practitioners have been secured by the Commission to undertake the legal battle when nothing may have been achieved after the expiration of the 21-day.

But the question is how competent these practitioners are to take on Airtell, when the issues involved are not criminal, civil or simple matter that can be handled by any legal mind. Lawyers that are grounded in telecommunication jurisprudence are very scarce in the Country. It is not a discipline that any Jack and Harry can handle easily and emerge victorious, especially when the language of the industry is peculiar and sophisticated and not as common as anyone could imagine when it comes to the real issue of determination.

Lawyers in Sierra Leone are mostly general practice minded, which is absolutely different in the field of Telecommunication. The crux of the application for an order to close Airtell has to be examined critically and properly by any Presiding Judge. It is not a simple Larceny, Fraudulent Conversion or a case of Robbery that these Lawyers would have to present in Court, but something that involves signal transmission from one cell pole to another and to the consumer, distortion and other technological problems that are associated with communication. What is responsible for these deficiencies in the technology of Airtell? NATCOM should be able to establish in court, speak the language of the industry and be able to convince the Presiding Judge to grant the request.

This means, the Lawyers should now be busy reading and turning the pages of Law Books in Communication and engage in searches, whether through the internet or elsewhere for precedent to back up their claims and application or the order to be granted. Consequently, it would not be a day’s legal exercise as the Regulatory Commission itself would be subpoenaed to establish its case and would have to submit data that will showcased findings that are responsible for the current predicament of Airtell, which have led to shortchanging its subscribers. The problem is about congestion of signal transmission, which has to do with spectrum. This is the basic truth and NATCOM is capable of addressing it to solve the impasse. Spectrum allocated to Airtell may have reached its climax, while as a business entity the Company continues to register more subscribers.

This could be one reason. It is like a road that can accommodate five cars and not more than that, but when ten to fifteen cars are using the road that is meant for five, the consequences is evident and solving the problem requires the creation of a bigger road network to accommodate more cars. The Commission should be able to re-allocate additional spectrum space to Aitell that can be paid for, which is one of the principal sources of the Commission generating more revenue. Though, it is true that spectrum is a limited and scare commodity and quotarized to every country by the International Telecommunication Union, yet NATCOM may not have exhausted, by now what has been allocated to Sierra Leone by the Union.

The legal implication involved; is not one that Lawyers can wave with the back of the hand or dump easily in the court of law for an order to be granted. It involves more than meets the eye, not to mention the social and economic implications. The inconveniences that would be created during the period to the subscribers, the financial loss and many other unforeseen events that may rear their ugly heads should be expected.

It is not known how far NATCOM has prepared itself for the legal battle, which may not end in the court of law in Sierra Leone, but the International Court may also be interested to accommodate such brief. It is absolutely true that the rights and privileges of the many subscribers of Airtell have been abused by the Company, but what we don’t know is whether NATCOM has been meeting its obligation to the various Mobile Phone Companies in the Country, which has culminated in the handpick of Airtell and tagged as a poor performer.

Most of the Companies have failed to improve their services to their consumers. In the case of Comium, one could describe it as a “living corpse” in the telecommunication industry and for Africell the least said about it the better. In this kind of dilemma NATCOM should be able to address, if not all but most of the major problems that consumers are complaining about. One way of doing it is to establish policies that would focus on re-allocation of spectrum, management of spectrum, tariff rates and more. As markets are liberalized and new technologies evolve, the historical use of available spectrum tends to require updates.

In many cases part of the spectrum that was initially allocated to Mobile Phones Companies can be re-allocated. Frequently, benefits can be achieved by re-allocating spectrum in such a way that frequencies are freed up for new technologies and for usages that result in maximum benefit and welfare generation. Over the last few years, increasing use has been made of market based mechanisms in the allocation of scarce spectrum. Market based allocation mechanism include various types of auctions and spectrum trading. An efficient spectrum policy also requires a streamlined and effective spectrum allocation mechanism in line with international best practice.

As the regulatory environment develops, the compliance risk faced by operators’ changes rapidly with the focus of information provided to the regulator moving from historic cost, financial information, through current cost valuations and incremental cost models, towards a greater reliance on operational data such as product delivery lead times, fault rates and

comparative performance indicators in support of operational separation requirements. Regulation is designed to create a level playing field for the development of competition by defining the right balance between competing objectives such as: Consumer interests, Investment incentives, the long term growth, development of the communication sector, the design of regulatory frameworks, mechanisms and remedies are all complex tasks that need to be taken into account, technological developments for the next generation networks (NGN), etc,the evolution of telecommunication markets and the potential sources of market failure and appropriate remedies. In view of the above, it is evident that legal solution is not a solution to the problem, but how can consumers enjoy the worth of their hard earned money.